Citation Nr: 9900238
Decision Date: 01/06/99 Archive Date: 01/12/99
DOCKET NO. 97-11 392 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUE
Entitlement to service connection for residuals of a
concussion consisting of headaches.
REPRESENTATION
Appellant represented by: West Virginia Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Schlosser, Associate Counsel
INTRODUCTION
The veteran had active military service from April 1968 to
April 1970.
This matter originally came before the Board of Veterans’
Appeals (Board) on appeal from a January 1997 rating decision
in which the RO denied service connection for residuals of a
concussion. The veteran appealed and was afforded a hearing
before the undersigned member of the Board at the RO in
September 1997. At the hearing, the issues on appeal were
clarified to include the issues of entitlement to service
connection for bilateral defective hearing and entitlement to
service connection for residuals of a concussion consisting
of headaches. The case was remanded by the Board for
evidentiary development in April 1998. A September 1998
rating action granted service connection for bilateral
defective hearing and denied service connection for residuals
of a concussion, consisting of headaches. As such, the
former issue is not before the Board at this time for
appellate consideration.
REMAND
On pre-induction examination in February 1968, the veteran
was noted to have headaches with occasional dizziness. The
service medical records are negative for complaints,
treatment or diagnosis of a concussion. In March 1970, the
veteran was seen for complaints of headaches. Discharge
examination in April 1970 did not report any history of
complaints, treatment, or diagnosis of concussion or
headaches.
The veteran’s DD-214 reflects that the veteran served as a
vehicle repairman with a support unit. However, the
veteran’s DD-214 also reflects that he was awarded several
medals for his service in Vietnam, including a parachute
badge and a Bronze Star Medal with two service bars for
engaging in combat with the enemy.
In December 1996, the veteran submitted documentation which
reflects that he was profiled in service in October 1969 as
follows: “No exposure to loud noises or weapons firing for
10 days.” There was no stated reason for the profile. The
veteran maintains that he suffered a concussion which
resulted in headaches in October 1969; he was given this
profile with no medical treatment.
At his travel board hearing in September 1997, the veteran
testified that a B40 rocket exploded when he was in Vietnam
and he had headaches for three months afterwards. At the
time the rocket exploded, the veteran reported that he bled
from his eyes, ears, nose and mouth. He was not put in sick
bay; he was given a profile against exposure to loud noises
for 10 days and stayed in the combat zone. He said that he
currently has headaches once or twice a month. He initially
reported that he has not been to a VA facility for treatment
of his headaches; he then said that he had been to a doctor
on occasion for his headaches but that he has been told there
is nothing that can be done because there is a problem with
his inner ear that is causing his headaches.
At the time of the last remand, the Board emphasized that in
the case of any veteran who engaged in combat with the enemy
in service, VA is required to accept as sufficient proof of
service connection for any disease or injury alleged to have
been incurred in or aggravated by such service, satisfactory
lay or other evidence of service incurrence or aggravation of
such injury or disease, if consistent with the circumstances,
conditions or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation. It was further noted at that time that it did
not appear that the RO had considered 38 U.S.C.A. § 1154 (b)
in adjudicating the veteran’s claim for service connection
for residuals of a concussion consisting of headaches. See
Jensen v. Brown, 19 F.3d. 1413 (1994); Caluza v. Brown, 7
Vet.App. 498 (1995); and Collette v. Brown, 82 F.3d 389
(1996).
Pursuant to the April 1998 Board remand, the veteran was seen
for a VA neurological examination in August 1998. The
veteran complained of severe headaches which reportedly had
their onset after he suffered a concussion in service in
1969. He indicated that he has a headache once every month
or two which can last anywhere from one hour to three days.
He denied nausea or vomiting and indicated that his headaches
do not prevent him from engaging in any activity he may be
doing at the time. He denied photophobia or phonophobia but
complained of decreased concentration. On neurological
examination, the cranial nerves II through XII were intact.
There was no gross motor or sensory deficit and no ataxia.
Deep tendon reflexes were 2+ and equal throughout. The
diagnostic assessment was chronic, recurrent headache, not
otherwise specified.
The remand order had requested that the VA examiner respond
to three questions: (1) whether the veteran currently has a
chronic headache disorder and, if so, whether it pre-existed
service; (2) if a chronic headache disorder was found to have
pre-existed service, the examiner was asked to indicate
whether the chronic headache disorder had increased in
severity in service; (3) if a current chronic headache
disorder was not found to have pre-existed service, the
examiner was asked to indicate whether it was at least as
likely as not that the veteran’s chronic headache disorder
was related to the reported “concussion” in service or
whether it was otherwise related to service.
The examination report was unresponsive to all of the above
questions, other than the one regarding whether the veteran
currently had a chronic headache disorder. The physician’s
comments following that diagnosis were poorly articulated and
non-conclusionary. The Board is well aware that physicians
are now requested to express medical opinions on ultimate
questions of fact; questions of fact were considered to be
purely adjudicative prior to the creation of the U.S. Court
of Veterans Appeals. However, medical opinions as to these
ultimate questions of fact are now required to comply with
Court precedent, and the Board cannot use its own judgment to
fill in the blanks when the responses are less than complete.
Where the remand orders of the Board are not complied with,
the Board errs in failing to insure compliance. Stegall v.
West, 11 Vet. App. 268 (1998).
Under the circumstances, the case is REMANDED to the RO for
the following action:
1. The RO should schedule the veteran
for a VA neurological examination with a
VA physician other than the individual
who examined the veteran in August 1998.
The purpose of the examination is to
ascertain the presence or absence of a
chronic headache disorder at the current
time. The examiner MUST review the
claims folder, including this remand
order, prior to the examination and he
must state in his report that such a
review has taken place. All findings
should be reported in detail. Following
a review of the claims folder and
examination, he/she should indicate with
specificity whether the veteran currently
has a chronic headache disorder and if
so, whether such chronic headache
disorder pre-existed service. If it is
determined that the veteran has a chronic
headache disorder which pre-existed
service, the examiner should indicate
whether the chronic headache disorder
increased in severity during service. If
it is determined that the veteran’s
chronic headache disorder did not pre-
exist service, the examiner should
indicate whether it is at least as likely
as not that the veteran’s chronic
headache disorder is related to the
reported “concussion” in service or
whether it is otherwise related to
service.
2. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
aforementioned development action has
been conducted and completed in full. If
any development is incomplete,
appropriate corrective action is to be
implemented. The RO is advised that the
claims folder should not be returned to
the Board until all of the questions
posed in paragraph (1) above have been
answered by the VA physician who examines
the veteran.
The RO should then review the record and the claim should be
readjudicated. If the determination remains adverse to the
veteran, both the veteran and his representative should be
provided with a Supplemental Statement of the Case. The
veteran and his representative should be given the
opportunity to respond within the applicable time.
Thereafter, the case should be returned to the Board, if in
order. The appellant need take no action unless otherwise
notified. The purpose of the remand is to obtain clarifying
data and to comply with a precedent decision of the Court.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
BRUCE E. HYMAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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